Citation Nr: 1421629
Decision Date: 05/13/14 Archive Date: 05/21/14
DOCKET NO. 12-23 415 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUE
Entitlement to service connection for a disability of the back, to include as due to a pilonidal sinus (cyst).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
J. L. Wolinsky, Associate Counsel
INTRODUCTION
The Veteran had active military service from September 1951 to September 1955.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran's claim was previously remanded by the Board in June 2013, and September 2013 for further development.
The Veteran testified at a video conference hearing before the undersigned in March 2013. A written transcript of this hearing has been prepared and incorporated into the evidence of record.
In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on the electronic "Virtual VA" and "VBMS" system to ensure a total review of the evidence.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. The probative evidence of record shows that the Veteran's lumbar spine degenerative joint disease is not related to his active duty service.
2. The competent and credible evidence demonstrates that the Veteran's low back scar is a residual of his in-service pilonidal sinus (cyst) removal.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for a disability of the back other than residuals of pilonidal sinus (cyst) removal have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2013).
2. The criteria for entitlement to service connection for residuals of pilonidal sinus (cyst) removal, to include scarring have been met. 38 U.S.C.A. §§ 1110, 1131, (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VCAA
The Board must discuss whether VA has complied with its duties to notify and assist the Veteran in substantiating his claims. In this respect, the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).
Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). The notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
A letter sent to the Veteran in June 2010, advised the Veteran with what information or evidence is necessary to substantiate his service connection claim for his back disability, as well as his and VA's respective responsibilities in obtaining such evidence and information, and how VA determines the disability rating, and effective date. The June 2010 VCAA letter was sent prior to the rating decision in August 2010. Therefore, VA fulfilled its duty to notify with regard to the Veteran's back claim.
To the extent that there may be any deficiency of notice or assistance for the Veteran's claim for service connection for residuals of pilonidal sinus (cyst) removal, to include scarring, there is no prejudice to the Veteran in proceeding with adjudication of the claim given the favorable nature of the Board's decision herein. Inasmuch as the determination below constitutes a full grant of the benefit sought, any error in notice or assistance is harmless.
VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The RO associated as best as possible the Veteran's service treatment records (STRs) and VA treatment records with the claims file.
In this case, the majority of the Veteran's service medical records appear to be fire-related and thus are unavailable for review. Under such circumstances, the United States Court of Appeals for Veterans Claims (Court) has held that the VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). The Veteran was notified that his claim was fire related in the August 2010 rating decision. The Veteran in his Notice of Disagreement submitted in March 2013, stated his awareness that VA was unable to obtain all of the Veteran's medical treatment and service records. Thus, the Veteran had actual knowledge of the absence of some service treatment records, and the Board finds no prejudicial error. In any event, the claims file does contain documentation of the claimed in-service event.
At the Veteran's March 2014 VA back conditions examination, the Veteran stated that he had seen a primary care physician for the past thirty five years. The Veteran previously never requested the records from his primary care physician be obtained and associated with the claims file, and there is no indication that the Veteran sought treatment from his private physician for his back disability. As VA's duty to assist is not a one-way street, the Board finds no further action on the part of VA is necessary. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).
Additionally, the prior remand instructions were substantially complied with for the Veteran's claim for service connection. The September 2013 Board remand instructions stated that the Veteran be scheduled for a VA examination, and for a readjudication of the claim if any benefits sought on appeal were denied. The Veteran had a VA back examination in March 2014, and a Supplemental Statement of the Case was sent in April 2014. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).
The March 2014 VA back examination and opinion are adequate as the examination report shows that the examiner, considered the Veteran's relevant medical/military/occupational history, conducted a physical examination with testing, and provided reasoned analysis to support the medical opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that VA must ensure that the examination provided is adequate).
Furthermore, the Veteran was afforded a Board hearing in March 2013. A Board member has two duties at a hearing: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim; and, (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See 38 C.F.R. § 3.103(c)(2) (2013); Procopio v. Shinseki, 26 Vet. App. 76 (2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). Here, during the Board hearing, the undersigned specifically noted the issue on appeal. The undersigned noted the element of the claim that was lacking to substantiate the claim for benefits. Also, information was solicited regarding the etiology of the Veteran's claimed disorder. As such, the Board finds that the undersigned complied with the aforementioned hearing duties.
Thus, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Any error in notice and development assistance cannot "reasonably affect the outcome of the case," and will not affect "the essential fairness of the [adjudication]" for the service connection claim for a back disability. See ATD Corp. v. Lydall, Inc ., 159 F.3d 534, 549 (Fed. Cir. 1998); Mayfield v. Nicholson, 19 Vet. App. 103 (2005).
Legal Criteria
Service connection may be granted for a disability resulting from an injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).
A disability can be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition. See 38 C.F.R. § 3.310(a) (2012). In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).
If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for certain chronic diseases, if manifested to a compensable degree within one year following discharge from active military service. 38 C.F.R. §§ 3.307, 3.309.
Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).
In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). However, the veteran may not be competent to identify a complex condition, or provide an opinion on etiology of a condition not capable of lay diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 & n.4 (stating that a veteran is not competent to identify a complex disability like cancer); See also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (stating that rheumatic fever is not a condition capable of lay diagnosis).
In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).
The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). "The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant." Id. at 367.
Back Disability
The results of the Veteran's March 2014 VA spine examination show a diagnosis of lumbar spine degenerative joint disease. This fulfills the current disability element of the Veteran's service connection claim. A review of the Veteran's STRs shows that the Veteran's August 1955 Report of Medical Examination reported a surgical scar and that the Veteran had a cyst. At the Veteran's hearing, the Veteran testified that he underwent surgery while in service for the removal of a cyst to his lower back. The Veteran also contended that he had Jeeps disease from the constant bouncing and riding of vehicles while in the military which caused his cyst to form. Thus, the Board finds that the in-service element is fulfilled.
Available service treatment records are negative for complaints or findings related to lumbar spine degenerative joint disease, and there is also no medical evidence of arthritis within the one year presumptive period after service. Also, the Veteran does not contend that he had degenerative joint disease in service or within one-year of his discharge from service. Thus, service connection on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307, 3.309(a).
In August 1955 the Veteran had surgery for the removal and drainage of a lower back cyst. Records show a request for hospitalization between December 16, 1955 and January 1956 for the Veteran's second cyst removal which was conducted after service. VAMC records show that in February 1956 the Veteran had his second procedure for the excision of a pilonidal cyst.
At the Veteran's Board hearing in March 2013, the Veteran stated that he believed his operation in 1956 was with a private physician, and was the same procedure the Veteran underwent in service. The Veteran stated that while a student at the University of Auburn after service, he had continuous back pain which prevented him from sitting at his desk. The Veteran stated that the surgery left him with chronic low back pain which limited his activities. The Veteran further testified that his chronic lower back pain is due to his pilonidal sinuses.
VAMC records show complaints of back pain in September 2003. The Veteran stated that he had back problems for forty years but that his back had gotten much worse in the previous six months. Treatment records from October 2003 show that the Veteran presented with chronic constant pain in his upper and lower back. The records also indicate that there was no history of recent or remote injury and the Veteran did not use an assistive device. X-rays showed a severe bony disease of the cervical spine, lumbar spine, and thoracic spine, and there was abdominal aortic calcification. The Veteran was told to take anti-inflammatory medication. Treatment records from May 2010 show continued complaints of lower back pain.
The Veteran underwent a VA examination in July 2013. The examiner stated that after a review of the Veteran's claims file, STRs, and medical history "there is no medical evidence to support the Veteran's pilonidal cyst or excision of his pilonidal cyst caused the Veteran's lumbar [degenerative joint disease]/spondylosis." The examiner also noted that there was no medical evidence of lumbar problems during the Veteran's service. The Veteran underwent an additional VA examination in March 2014. There the examiner concluded that the Veteran's back disability was "not caused by the in-service pilonidal cyst that was documented in the service, which was excised in December 1955." The examiner also concluded that the Veteran's current disability was not aggravated by his pilonidal sinus. The examiner explained that the Veteran's VA treatment records document joint disease of the neck and back since 2003 but no chronic problems or concerns related to the pilonidal sinus surgeries. The examiner maintained that no relationship existed between a pilonidal cyst and lumbar degenerative spondylosis.
While back pain is capable of lay observation, lumbar spine degenerative joint disease is not capable of lay diagnosis since it is not a simple medical condition. See Jandreau, at 1377, n. 4. Joint disease and the determination of an etiology for a back injury is a complex medical determination requiring x-ray interpretation, and medical knowledge of the spine. Lumbar degenerative joint disease is not capable of lay diagnosis and as such, the Board finds that the Veteran is not competent to diagnose lumbar spine degenerative disease or provide the requisite nexus opinion for his back disability. See Woehlaert v. Nicholson. Furthermore, the medical evidence of record fails to provide a positive opinion regarding the Veteran's current back disability and his in-service operation for the removal of a cyst.
The July 2013 and March 2014 examiners determined that the Veteran's current back disability was not at least as likely as not related to the Veteran's service, nor was the Veteran's cyst related to or aggravated his current back disability. In coming to their conclusions, the examiners reviewed the Veteran's available STRS, VAMC records, medical history, and conducted a physical examination of the Veteran. While the Veteran stated in 2003 that he had been dealing with back pain for forty years, there is an absence of complaints for back pain or a back disability for that period of time based on the available records. The absence of medical records showing complaints or treatment for a back pain until nearly fifty years after the Veteran's service and surgery, combined with the assessments by physicians weighs against the Veteran's claim for service connection. See Maxson v. Gober. The Veteran's lay statements are less probative than the Veteran's STRs, and the opinions rendered by the July 2013 and March 2014 examiners. Thus, the Veteran is unable to fulfill the nexus requirement.
As such, service connection for a disability of the back other than residuals of pilonidal sinus (cyst) removal, is not warranted on any basis. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2013). Therefore, the Veteran's claim for service connection is denied.
Back Scar
As stated above, the Veteran underwent surgery for the removal and drainage of a cyst as reported by the August 1955 Report of Medical Examination. At the Veteran's March 2014 VA examination, the examiner stated that the Veteran does not have a diagnosis of any skin condition, but has a scar from the removal of a pilonidal cyst. As the Veteran had a cyst removed from his back in service and continues to have scaring from that procedure, the Board finds that the evidence supports the claim and entitlement to service connection for residuals of pilonidal sinus (cyst) removal, to include scarring is warranted. 38 U.S.C.A. § 5107(b) (West 2002);Gilbert v. Derwinksi, 1 Vet. App. 49 (1990).
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ORDER
Entitlement to service connection for a disability of the back other than residuals of pilonidal sinus (cyst) removal is denied.
Entitlement to service connection for residuals of pilonidal sinus (cyst) removal, to include scarring is granted.
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TANYA A. SMITH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs